{
  "id": 5102906,
  "name": "A. P. Gilmore v. Thomas E. Courtney",
  "name_abbreviation": "Gilmore v. Courtney",
  "decision_date": "1894-06-18",
  "docket_number": "",
  "first_page": "417",
  "last_page": "420",
  "citations": [
    {
      "type": "official",
      "cite": "54 Ill. App. 417"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T19:49:51.601388+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "A. P. Gilmore v. Thomas E. Courtney."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Gary\ndelivered the opinion of the Court.\nJuly 15, 1889, these parties made a written contract under which the appellee was to do the excavating and mason work of a house for the appellant, and complete the work by October 1, 1889. The appellant was to pay \u201c upon certificate of H. B. Seeley, architect, that all the terms of the contract have been complied with,\u201d and one article of the contract was:\n\u201c It is mutually agreed that all questions of damages, .allowance for extra work or work left out, and all questions as to the true intent and meaning of this contract shall be referred to H. B. Seeley, as arbitrator, and his decision shall be final and binding to both parties.\u201d\nThat under these stipulations, the appellee must have a certificate of the architect, or an excuse for not having it, in order to maintain his action, is not denied by the appellee. He did not fully complete his work, and quit it about December 1, 1889, as the jury found. He had no certificate, and the only excuse offered is that on the first application for a partial payment under a provision of the contract for such payments, \u201cat the discretion of the architect,\u201d the architect required of the appellee a \u201c statement,\u201d in conformity with section 35 of the mechanics\u2019 lien law, as it then stood under the amendment of 1887, since wholly changed. The appellee objected that he was not required by other owners to present such a statement, and there is testimony that the architect expressed himself vigorously that he Avas in favor of the appellant and opposed to everybody else. This intervieAT Avas months before the appellee left the Avork, in fact- within three weeks of its commencement.\nThere is testimony that the appellee then said to the appellant, that there Avas one understanding upon which he, the appellee, could do the Avork, and that Avas that if they should have any misunderstanding when the work was completed the whole matter should be arbitrated, to Avhich the appellant agreed.\nThe court left the question to the jury upon instructions asked by both parties, Avhether the language used by the architect would reasonably justify the appellee in believing that the architect Avould not decide fairly, and if not, Avhether the provision for submitting to his decision Avas AvaiAed by the appellant.\nWe Avill not review the evidence upon which the jury, by a verdict for the appellee, must have found in the affirmative upon one or the other of those questions. The judgment must be reversed for an error in the last instruction for the appellee. That instruction told the jury, that if there Avas such a waiver, \u201c the plaintiff is entitled to have and recover in this case for the balance of the contract price and the cost of the extra material and labor, and damages for delay, as the evidence in this case shows such balance on said contract, extra labor and material and delay Avas fairly and reasonably worth, less damages, if any, caused by plaintiff\u2019s delay, if from the evidence they believe he has caused any delay.\u201d\nThe appellee claimed damages for being delayed by other contractors, for extras, and for work under the contract, but conceded that the contract Avas not fully performed.\nThe appellant claimed damages for delay by the appellee, for bad work, and for deficiencies in performance.\nThese claims of the appellant were supported by, we may say, at least, some evidence. The instruction cut off consideration of damages for bad work and deficiencies. We could not ourselves figure out how much the appellant lost by it, but the argument of Ms counsel leads us to conclude that the verdict for $1,550 should have been $902.22. If the appellee will remit to the latter sum within ten days the judgment will be affirmed for that, if not, the judgment will be reversed and the cause remanded. In either event the costs fall on the appellee.\nMr. Justice Waterman.\nI am not satisfied that under the evidence appellee was entitled to recover, in the absence of a certificate from the architect.",
        "type": "majority",
        "author": "Mr. Justice Gary Mr. Justice Waterman."
      }
    ],
    "attorneys": [
      "Collins, Goodrich, Darrow & Vincent, attorneys for appellant.",
      "George P. Merrick, attorney for appellee."
    ],
    "corrections": "",
    "head_matter": "A. P. Gilmore v. Thomas E. Courtney.\n1. Building Contract\u2014Architect\u2019s Certificate,\u2014Under a building contract providing that all questions of damages, allowance for extra work or work left out, and all questions as to the true intent and meaning of this contract shall be referred to an architect as arbitrator, and his decision be final and binding to both parties, the contractor must have the certificate of the architect, or a legal excuse for not having it, in order to maintain his action.\n2. Instructions\u2014Ignoring Evidence.\u2014In an action upon a contract, where the defendant claims damages for delay by the appellee, for bad work, and for deficiencies in performance, and there is some evidence tending to show such damages, an instruction which cuts off consideration of damages for such work and deficiencies, is erroneous.\nMemorandum.\u2014Assumpsit on building contract. Appeal from the Superior Court of Cook County; the Hon. George F. Blanks, Judge, presiding.\nHeard in this court at the March term, 1894.\nReversed and remanded.\nOpinion filed June 18, 1894.\nCollins, Goodrich, Darrow & Vincent, attorneys for appellant.\nGeorge P. Merrick, attorney for appellee."
  },
  "file_name": "0417-01",
  "first_page_order": 415,
  "last_page_order": 418
}